I Introduction

On April 26, 2004 I attended a one-day conference at the Yale Law School on “Rethinking ‘Nomos and Narrative’: Marking Twenty Years Since Robert Cover’s Essay.” My modest contribution to that occasion was subsequently published as “Nomos and Narrative Before Nomos and Narrative,” in the Yale Journal of Law and the Humanities, in which I explored some of the history of the dynamic intersection of “nomos and narrative” in Judaism from antiquity to modern times, mainly through an assembly of rabbinic texts.Footnote ¹ Here I wish, once again, to pay tribute to Robert Cover by critically engaging another of his essays, “Obligation: A Jewish Jurisprudence of the Social Order” (first published in 1987 in the Journal of Law and Religion).Footnote ² I shall do so by bringing for our close reading pleasure an early rabbinic text of midrash (scriptural commentary) that is highly relevant to Cover’s theme and remarkable for its honesty and prescience, qualities shared with Cover. For the Rabbis, and the Hebrew Bible before them, there can be no law without religion or religion without law, however we might define those slippery terms.

II Robert Cover on Jewish Law As Commandment or Obligation

In his aforementioned essay on “Obligation” (Hebrew: mitzvah, but more broadly understood by Cover as “incumbent obligation” [239]), Cover draws a sharp contrast (but with caveats) between western secular jurisprudence, which is based on individual rights, and Jewish religious jurisprudence, which is based on collective (but also individual) obligations. Thus, for example, in the former, justice is served by fulfilling the rights of individuals to, say, receive affordable medical care, whereas in the latter, it is the obligation of the collective to provide it.

Cover argues that each such system of law (or legal discourse) is founded and sustained by a distinctive narrative or “myth.” Thus, modern individual “rights” are rooted in the secular mythos of a social contract, whereas Jewish “commandments” are rooted in the religious mythos of an all-encompassing divine (or Mosaic) revelation that enjoins those commandments upon all of Israel, including future generations, standing at Mt. Sinai.Footnote ³ Here is Cover in his own words:Footnote ⁴

Cover acknowledges that for most of Jewish history, Jews have not exercised the coercive, sovereign authority necessary to enforce most of the commandments, understood as having been initially commanded by God through Moses, his prophetic agent. Again, citing Cover:Footnote ⁵

According to Cover,Footnote ⁶ even when Jewish law created plenty of space for divergent legal interpretations and rulings, it predicated that polysemy or legal pluralism not on individualism, per se, but on the myth of a single, divine, originary, commanding voice.Footnote ⁷ This renders the system of commandments qua commandments (and not simply as “good deeds”) all the more remarkable for its persistence and relative continuity over thousands of years in the absence of a centralized, politically (as distinct from socially) coercive enforcement of judicial sovereignty. Even so, Cover argues, the system is predicated on its subjects’ understanding their obligations as stemming from the collective self-understanding of, passively speaking, “being commanded.”Footnote ⁸

Cover acknowledges that rights-discourse and duties-discourse are not impervious to one another, often producing hybrids that belie the secular (rights) versus religious (commandments) dichotomy. Thus, one can just as easily identify secular systems based on duties-discourse (e.g., communism, fascism), as one can justify systems based on rights-discourse that are founded on religious principles or myths (e.g., the US Declaration of Independence). As Cover indicates, this is not simply a function of modernity:Footnote ⁹

In the end, “Sinai and social contract both have their place” as dynamically intersecting mythoi of jurisprudence.Footnote ¹⁰

The midrashic text that we will shortly examine asks, how can the commandments (and the Sinai/Moses mythFootnote ¹¹ upon which they rest) be obligatory for all time, that is, be upheld and transmitted across the generations, especially in the absence of political and judicial sovereignty and in the reality and cacophony of human autonomy? As we shall see, the midrash is a beautiful example of an ancient rabbinic text that reads a “counter myth” of legal autonomy into the heteronomy of Scripture.

III The Hebrew Noun mitzvah and Verb tzivah

Before doing so, however, a few words are required regarding the meaning of the noun mitzvah (commandment or obligation) and the verb from which it derives, tzivah, (to command or enjoin). As Cover indicates, this is the core word for biblical/Jewish law as being divinely commanded and obligatory (alongside many other words for law).Footnote ¹² But this verb, tzivah, has another, less widely attested and acknowledged meaning, or shade of meaning, that being to will possessions or instructions to one’s heirs in anticipation of one’s death, as in an “ethical will.”Footnote ¹³ But the two meanings are close to and sometimes bleed into one another (both being forms of instruction), as in the following biblical verse, Deuteronomy 33:4, referring to Moses at the very end of his life and career, introducing what might be termed Moses’s ethical will, or “blessing,” (Deuteronomy 33) to the tribes: “Moses charged us with (the) Teaching (Torah), as the heritage of the congregation of Jacob” (New Jewish Publication Society (NJPS) adapted).Footnote ¹⁴ The poetic parallelism of this verse would suggest an alignment between the verb to charge (tzivah) and the noun for heritage (morashah). By this understanding, Moses, at the very end of his life and leadership, is more likely to have enjoined the people to embrace what is now their heritage than to have commanded them collectively to obey its laws. We are here, after all, in the midst of a rhetorical discourse of admonition rather than that of law as commandment, even though the difference is a subtle and unstable one. Alternatively, the parallelism might suggest what began as Moses’s command soon became the heritage of the successive generations of Israelites. This meaningful ambiguity (commandment/legacy) both foreshadows and enables the radical midrashic reading of Deuteronomy 32:46 that we are almost ready to engage.

IV The Biblical Context: Moses’s Swan Song

Deuteronomy 32, the scriptural lection Ha’azinu (“give ear”), is Moses’s swan song, just prior to his death at the ripe old age of 120, after 40 years of unsought leadership of the Israelites in their epic journey from Egypt to the edge of the Promised Land. In Cover’s mythic-narrative sense, Moses’s oration is Sinai’s forty-year extension. The book of Deuteronomy is Moses’s paraphrastic reprise of the laws and narratives of the past forty years. It is full of pathos regarding Moses’s repeatedly denied petitions to God to be able to see his epic mission to its completion across the Jordan River.Footnote ¹⁵ Throughout Deuteronomy, Moses worries and warns the people that without his charismatic prophetic leadership, upon settling in the Land and enjoying its bounty (and mixing with its non-Israelite inhabitants), they will grow complacent, forgetting their history and abandoning the commands to their great covenantal peril. Deuteronomy is Moses’s last chance to inoculate them, rhetorically speaking, against this feared or anticipated outcome.

V The Midrashic Commentary (Sifre to Deuteronomy §335)

The scriptural lemma (Deuteronomy 32:46) is part of the conclusion to Moses’s Haʾazinu song. Its midrashic commentary divides the verse into two halves, so that each half receives its own discrete interpretation. We shall later return to the question of whether the two exegetical units form a larger whole, or just two distinct units that are editorially placed in sequence according to the order of the scriptural verse.Footnote ¹⁶ Here’s the verse (32:46a–b in bold), together with its surrounding verses, to give a sense of its scriptural context:Footnote ¹⁷

V Part 1

Here is the midrash’s commentary to the first half of verse 46, following MS London:

While the idiom “to set one’s heart (=mind) toward” would seem to denote mental engagement with or concentration on divine or Mosaic instruction, the midrash, based on the parallel use of the same idiom in Ezekiel 44:5, but there combined with the senses of seeing and listening, concludes that in Deuteronomy 32:46a too, Moses is exhorting the people to actively and intensely engage “words of Torah,” not just mentally, but visually and aurally as well, in effect, with the totality of one’s sensing self.Footnote ¹⁹

Before proceeding, however, we should note that the expression “words of Torah,” construed here broadly as including both scriptural and non-scriptural (oral) rabbinic teaching,Footnote ²⁰ is without direct scriptural antecedent. In the present context, the phrase “words of Torah” does not appear in the first half of the verse (46a), but is the result of a midrashic importing of it from the second half of the verse (46b: “all the words of this Torah”) to the first (46a: “all the words”). The expression “the words of Torah” within the Pentateuch only appears in the book of Deuteronomy, where it occurs nine times, but always modified by the demonstrative pronoun “this” (as in verse 46b), referring to some form of the book of Deuteronomy or a part thereof,Footnote ²¹ as in Deuteronomy 1:5, where “this Torah” introduces the book of Deuteronomy, or the bulk thereof, that follows. The expression “the words of Torah” appears only five more times in the rest of the Hebrew Bible, but always with the definite article “the.”Footnote ²² The more inclusive (rabbinic) expression “words of Torah” (without the definite article or demonstrative pronoun) never appears scripturally or, for that matter, in any pre-rabbinic Jewish text (e.g., the Dead Sea Scrolls). By contrast, the expression appears 13 times in the Mishnah, 15 in the Tosefta, and 190 times in the tannaitic midrashim, in the latter predominantly (145/190) in commenting on the book of Deuteronomy.

Returning to our midrash, the parallel expressions of Moses’s call to the people to pay close mental and multi-sense attention to his “words of Torah” and God’s call to Ezekiel to pay close attention to the envisioned heavenly Temple do not constitute an analogy between equals. Rather, by an argument of qal vaḥomer the midrash says that if such multi-sense engagement is divinely demanded with respect to the seemingly solid, stable, and tangible Temple, how much more should it be required of the precariously fragile, unstable, and intangible “words of Torah.”

The metaphor of “mountains suspended by a hair” demands a brief detour. The phrase appears in only one other tannaitic textual context, that being m. Ḥagigah 1:8 and its related t. Ḥagigah 1:9 and t. ʿErubin 8:23. There it metaphorically denotes a class of laws (e.g., Sabbath laws) with “little Scripture and many laws,” meaning that this class of laws has little in Scripture upon which to “lean” (according to the Tosefta). The Sifre Deuteronomy commentary is unique in its use of this metaphor to characterize “words of Torah” in their entirety. Should we read the Sifre in light of the Mishnah and Tosefta, as saying that all “words of Torah,” that is, all of rabbinic law, are fragile by reason of having “little Scripture and many laws,” that is, few scriptural hooks upon which to hang or from which to derive its laws? I would prefer not to do so, but to read the expression in Sifre Deuteronomy in its own right, thereby preserving the radical ambiguity of its reason for characterizing rabbinic “words of Torah” in their entirety as being “like mountains suspended by a hair.” One could imagine other reasons for this fragility besides the abundance of rabbinic laws with respect to their meager scriptural bases, for example, the difficulty of committing such a large corpus of laws and cacophonous legal debate to memory and oral recitation, and hence the danger of their being lost.Footnote ²³ This would link, as we shall see, the two parts of the midrash to one another. In any case, the qal vaḥomer argument is ironic, since at the time the midrash was composed, the physical Temple (but not its heavenly prototype) had long been destroyed, while the unstable “words of Torah” had survived, perhaps thanks to the multi-sense attention lavished upon them by their midrashic tradents over the generations.

V Part 2

As radical as is this self-admission of comprehensive rabbinic legal fragility, the midrash’s comment to the second half of the biblical verse is even more radically honest, and potentially subversive. The end of the passage, as we shall see, is particularly difficult, and likely corrupt, in the opinion of several commentators, here following MS London:Footnote ²⁴

Before further unpacking this midrash, it should be noted that a different, shorter, more easily rendered strand of this midrashic tradition, especially the lines beginning with “Had Moses not been great,” appears to have been preserved in a Byzantine-Yemenite tradition, as evidenced in Midrash Ha-Gadol and Midrash Leqaḥ Ṭov, here citing from the former:Footnote ³⁴

Note that instead of the word אחר (“other”), as in MS London and its family of witnesses, which I argued was awkward, we have אחרים (“others”), which could have been abbreviated as ‘אחר and subsequently miscopied as אחר, which makes less sense here than אחרים. Thus, hypothetically, a prior un- or less-corrupted text behind both versions could have been, אילו אין משה גדול הוא ואילו[לא] אחר[ים] קיבלו תורתו …(“Had Moses not been so great, and/or had others not received his Torah … ”). Interestingly, no witness to this part of the midrash includes both אחר and אחרים, suggesting that this is a differentiating marker between the two main recensions of the text: MS London and company (with אחר, referring to a law-giving leader other than Moses) and Midrash HaGadol – Midrash Leqaḥ Ṭov (with אחרים, referring to the successive generations of recipients after Moses).Footnote ³⁶ Note also that the Midrash HaGadol – Midrash Leqaḥ Ṭov recension lacks the concluding (and awkward in MS London and its allied witnesses) expression על אחת כמה וכמה (“how much more so”), as well as the concluding citation of the lemma, לכך נאמר (“as it is said … ”). It is possible that these are editorial accretions added for purposes of stylistic consistency. Although as collections, these midrashic anthologies are considerably later than the Sifre, they may at times preserve texts and traditions that are earlier than the manuscript evidence for the Sifre itself.Footnote ³⁷

Two modern rabbinic scholars have significantly emended the text of the Sifre here, using the printed edition (virtually identical to MS London), but pulling it into accord with the Midrash Ha-Gadol – Midrash Leqaḥ Ṭov tradition. Thus, the Gaon R. Elija of Vilna (the GRA) (1720–97), in “his emendations,” renders our difficult concluding lines as follows:

Similarly (but without acknowledged awareness of the GRA’s emendation), Louis Finkelstein renders the end of our midrash as follows:

Notwithstanding these text-critical challenges at the end of the midrashic passage, and my preference for the Midrash Ha-Gadol – Midrash Leqaḥ Ṭov recension, the various versions share some important exegetical features. In order to understand and appreciate them, it is first necessary to recognize an aspect of the biblical verse that might at first have gone unnoticed by the non-midrashist. We might have expected Moses to enjoin his immediate audience to observe the commandments once they had crossed over the Jordan River and entered the land, but without any longer the advantage of his charismatic, prophetic teaching and leadership. However, the biblical verse has Moses enjoin, rather, his audience to command their children to observeFootnote ³⁹ all of the Torah’s commandments, presumably in perpetuity (as would seem to be the implied meaning of verse 47).Footnote ⁴⁰ Thus, in Moses’s final days, his public role as commander and teacher in chief is not transmitted so much to future national leaders (e.g., Joshua according to Numbers 27:12–23; Deuteronomy 31:2–8; and 34:8–9; or Ezra according to Nehemiah 8:1–8) as to the succession of parents and future parents in the private setting of the family or home.Footnote ⁴¹

Turning to the midrashic comment to the second half of the verse (32:46b), it paraphrases Moses’s speech to the people in a strikingly altered form and emotional tone. No longer is Moses the authority figure who commands absolute obedience to “all the words of this Teaching (Torah),” but a suppliant who implores the people not only to maintain themselves the “words of Torah” after his impending death, but to beseech their children to do the same. Subtle as the change is, the verb lishmor (observe) in the biblical text is replaced by leqayyem (to maintain, which rabbinically denotes as well study and memorization) in the midrash.Footnote ⁴² Impotent, as it were, any longer to command, Moses must employ moral persuasion in the hope that the people will both maintain the words of Torah and, perhaps even more importantly, transmit them to the next generation, and for it, implicitly at least, to do the same in turn in perpetuity.

As if to signal, from the advantage of hindsight, that Moses and the successive generations of Israelites succeeded in so fulfilling and transmitting the Torah laws, we are suddenly transported forward in time approximately fourteen hundred years to the study, as it were, of R. Judah the Patriarch, who as purported editor of the Mishnah, the earliest and most consequential digest of rabbinic Torah law, might be (and is) thought of as a latter-day Moses. R. Judah the Patriarch, we may infer, is either toward the end of his life or anticipating it (“after me”). He, we are told, has just returned from a mission of some sort to Laodicea (probably the one on the Lycus), a heavily hellenized Roman provincial city in Asia Minor (modern-day Turkey), with a substantial Jewish (and Christian) population. From the story, we do not know what R. Judah the Patriarch experienced there, but it would seem to have caused him to worry about the present and/or future state of Judaism in a highly hellenized environment. Inviting two students to come close (doubly expressed in some witnesses such as MS London), thereby indicating perhaps intimacy, but also urgency, he says to them, in the words of the midrash, exactly what Moses said to the people at the end of his life, some fourteen hundred years earlier. In this context, “children” could mean biological offspring or “students,” intellectual offspring, or both.Footnote ⁴³ The pathos here is similar to that of Moses in his waning days. With all the learning and authority that R. Judah the Patriarch commands, he cannot successfully command or coerce his students, but can only implore them to fulfill and transmit what he has imparted to them to their children/students, and so on. R. Judah the Patriarch is clearly portrayed here as a latter-day Moses, perhaps also implying a parallel in status between their respective Torahs (Written and Oral), and the fragile nature of both.Footnote ⁴⁴

The absolute identity of the midrashic words of Moses to those of Rabbi Judah the Patriarch, and the similarity and shared pathos of their situations, might lead us to overlook some fundamental differences between them. Moses is publicly addressing the whole Israelite people, while Rabbi Judah the Patriarch is privately (and intimately) addressing two of his students (their being two allows Rabbi Judah the Patriarch to employ the same second-person plural forms of address as does Moses). There is a shift from a great leader publicly enjoining the “corporate” Israel, to a later great teacher who does so privately to two individuals (and their children/students). Thus, Moses’s message and role, as midrashically construed, has become more individualized (and intimatized) with time, as, presumably, it has become for the “we” of the midrash’s presumed audience,Footnote ⁴⁵ who as autonomous individuals, may be moved (or not) to compliance by the rhetoric of mitzvah as legacy. Both Moses (as midrashically reinvented) and Rabbi Judah the Patriarch seek not just immediate observance of the commandments, but long-term maintenance of “words of Torah,” now entrusted to internalizing textual study among small groups of masters and disciples, rather than to mass acceptance of the laws by the people as a whole.Footnote ⁴⁶ Survival of Torah depends as much on its private as public transmission through performance.Footnote ⁴⁷

Note as well the subtle role reversal of master and students (or “patron” and “clients”). While they come, presumably, with the intent of paying their respects to Rabbi Judah the Patriarch (note the hierarchical language of “they entered and sat before him”), it is he who is now revealed to be dependent on their “favor.” The honor that they expect to bestow upon him is now reversed, being no longer an expression of his superior status but of his total dependence upon them to carry forward his teaching.Footnote ⁴⁸

The full pathos of Moses’s words (and by extension, those of R. Judah the Patriarch) is indicated in the concluding sentence of the midrashic commentary, regardless of which textual strand one prefers to follow. In either case, the critical role of transmission across the generations (whether by children or by students) is emphasized, while the commanding role of Moses (and of R. Judah the Patriarch) is sidelined. Moses’s prophetic greatness does not ensure the “maintenance” of Torah teaching, but rather is contingent upon it, that is, upon the reception, fulfillment, and transmission of his words (understood to encompass the totality of rabbinic “words of Torah”)Footnote ⁴⁹ by successive generations, not of prophetic leaders (as in the “chain of transmission: in the opening lines of Pirqe ʾAvot), but of teachers and parents able to impress the laws and teachings of his Torah upon their students and children to both observe and transmit. Otherwise, we are told, it is as if Moses’s Torah (and, we might infer, Moses himself, and, by extension, R. Judah the Patriarch) would not have been of any worth or consequence.Footnote ⁵⁰

The midrash, at least as explicitly emended by the GRA and by Finkelstein, and as less boldly asserted by MS London’s introduction of “we,”Footnote ⁵¹ makes one final, gigantic, temporal leap, as it were, this time to the present of the text’s auditors, with another argument of qal vaḥomer (although not fully tagged as such and absent in the Midrash Ha-Gadol – Midrash Leqaḥ Ṭov recension): Just as Moses’s (that is, his Torah’s) worth, with all of his greatness, was entirely contingent on his ability to impress the responsibility of transmission on the minds and hearts of his successors, how much more is that the case “for us”(ʾanu), who, shrink before the greatness of Moses (and by association, before that of R. Judah the Patriarch). Or, as MS London expresses it, the maintenance and transmission of the Torah is contingent on “us” rather than on Moses’s prophetic greatness and revelatory authorship. Even had he not been so great, or not been the Torah’s commander to begin with, “we” would still have been expected to receive, maintain, and transmit it in perpetuity. How much more so with Moses and his greatness! Nevertheless, the Torah could have been maintained (or not) by “us” without him. Ironically, “we,” in effect, are now the equals (at least) of Moses and R. Judah the Patriarch in bearing the weight of the continuity of the chain of transmission. They are as dependent on “us” to maintain their “words of Torah” as “we” are dependent on them for the “words of Torah”’s prophetic and canonical authority. Although not explicitly stated here by the Sifre, “our” inclusion as the latest link in this chain is midrashically effected by the biblical verse’s prescient reference in 46a to “this day,” as if signaling the longue durée of the perpetual present, in which every successive day is signified by “this day.”Footnote ⁵²

VI Conclusions

In conclusion, let me first address the question of whether the two halves of our midrash constitute a whole, greater than the sum of its parts, even as each can stand perfectly well on its own. Both halves are honest yet radical in emphasizing the precariously fragile, unstable nature of “words of (rabbinic/oral) Torah,” especially as transmitted orally through study and memorization. The first does so by comparing “words of Torah” to “mountains suspended by a hair,” referring either to their tenuous scriptural warrants (as in the parallel in m. Ḥagigah 1:8), or to the tenuous task of their retention and transmission through memorization, at any moment liable to being severed from their roots by the cutting of their hairline suspensions.Footnote ⁵³ The second does so by emphasizing the inter-generational human challenge to observing and transmitting “words of Torah” from teacher to student and parent to child, without the ability (already with Moses) of being able to command absolute fidelity.

Not only do the two halves of the midrash share with each other the rhetorical argument of qal vaḥomer (but not as explicitly in the second half), but they both do so with irony, reversing the seemingly obvious designation of “heavy” and “light”: the Temple is no more sturdy than the fragile “words of Torah,” and Moses (and R. Judah the Patriarch by association) is no greater than his successors when it comes to obligating the next generation to observe the commandments. “Our” “words of Torah” are as fragile as were theirs, and “we” are as impotent as were they to command obedience from our children and/or students. In the end, all “we” can do is implore them (as were “we”) to carry forward the charge, based on a rhetoric, no longer of Sinai-based commandment, but of cross-generational fidelity to legacy.

Thus, in addition to (or between) Cover’s rhetorical, mythic vectors of law as social contract (rights) and law as Sinaitic revelation (commandments), we might interpose that of law as legacy, which draws upon and nourishes both, without necessarily negating or superseding either: upon the myth of Sinai for its diachronic, inter-generational transmission of commandments (even without an immediate Commander-in-Chief or Lieutenant Commander), while upon the myth of social contract for its synchronic creation of sympathetic communities. Both can instill and inspire “bonds of solidarity,” as Cover terms them, whether vertically or horizontally. But so too can law as historically transcendent legacy, extending both back to Sinai in shared memory and forward through the present of shared community to the next generation (at least) in unassured anticipation and aspiration. Stated differently, Moses retains (at least for now) his greatness, but it remains precariously dependent upon “our” bonds of both collective and individual solidarity with both one another and with his legacy. In that regard, we might compare Edmund Burke’s understanding of the inter-generational grounding of law in society. For example, “[The state] becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.”Footnote ⁵⁴

Circling back to Cover, we can say that a central mythic component of the Jewish legal legacy is the self-understanding of “being commanded.” Even the anarchist in Cover would recognize law as commandment and law as legacy (like nomos and narrative) as two dialectical sides of the same coin, both being expressed by the same Hebrew verbal root, tzivah. Similarly, we might say (if we had a three-sided coin), that Cover’s two foundational myths of law as contract (rights) and law as revelation (commandments) can only be deepened by their integration with law as legacy, which incorporates both rights and obligation.